USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1226
RORY C. HOLLAND,
Plaintiff, Appellant,
v.
CITY OF PORTLAND, SULLIVAN RIZZO and BRUCE COFFIN,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin, Circuit Judge,
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and Lisi,* District Judge.
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Stuart W. Tisdale for appellant.
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John E. Sedgewick with whom Berman & Simmons, P.A. was on brief
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for appellees.
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December 6, 1996
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*Of the District of Rhode Island, sitting by designation.
BOUDIN, Circuit Judge. Rory Holland sued the City of
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Portland, Maine, and two Portland police officers, Sullivan
Rizzo and Bruce Coffin, for damages and injunctive relief
under 42 U.S.C. 1983 and Maine tort law for Holland's
allegedly wrongful false arrest and detention. Following
discovery, the district court granted the defendants' motion
for summary judgment on all of Holland's claims. Holland
appeals from the court's judgment dismissing his
section 1983, but not his state law, claim.
The facts, taken most favorably to Holland, are as
follows. At about 1:20 p.m. on October 18, 1994, Portland
police radio traffic reported a robbery at the Key Bank in
Canal Plaza. The police dispatcher described the suspect as
a black male, about 6'2" tall, 185 pounds, unshaven, wearing
a brown jacket, possibly suede, and a black hat, and carrying
a black leather briefcase. The dispatcher reported that the
suspect had fled on foot and did not indicate that any
vehicle had been involved.
Shortly after 2:00 p.m. on the same day, Holland was
driving a Subaru to the Cumberland County Courthouse in
Portland. He drove past a bicycle patrolman, Daniel Knight,
and turned the corner. Knight had heard the dispatcher's
report about the robbery. When he saw the Subaru, he noticed
that the driver, Holland, was a tall, thin black man wearing
a brown or black jacket and a hat who appeared to meet the
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description of the suspect, and he also noticed that the car
had no back window.
Knight reported to the police dispatcher, "Ten-twenty on
Rory Holland, he's in the area." Although Knight had not met
Holland, he thought that the Subaru driver fit descriptions
of Holland that Knight had seen in police bulletins. The
dispatcher asked if Holland's clothing matched that of the
reported suspect. Knight did not respond, but the dispatcher
immediately sent backup police units and indicated that the
suspect was a "possible match."
After turning the corner Holland parked his car and
started walking across the street towards the courthouse. He
wore a brown tweed jacket and a brown leather hat, and was
carrying a black nylon briefcase and a white canvas bookbag.
Knight stopped Holland in the crosswalk and, addressing
Holland by name, said that a bank robbery had just been
committed and asked where Holland had been. Knight also
asked about the contents of Holland's bag. Holland remained
silent.
Coffin, Rizzo, and another officer soon arrived at the
scene, and the officers then walked up to Holland, backing
him up to his car. Coffin was familiar with Holland's past
history from information circulated within the police
department and thought that the Subaru driver was Holland.
Rizzo had also heard about Holland in department briefings
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and previously had seen a photograph of Holland. Coffin and
Rizzo then began to ask Holland questions concerning the bank
robbery.
Although Rizzo told Holland that he was not under
arrest, and that the police just wanted to learn about the
bank robbery, Holland remained silent. Noticing the missing
rear window in Holland's car, Rizzo asked Knight if Holland
had been driving. When Knight said that he had, Rizzo
allegedly said, "well, then we can get him for not having a
license or something or other." Rizzo then said, "Rory, you
know, I can arrest you if you don't show me a valid driver's
license and tell me where you live . . . ."
Holland continued to remain silent. Rizzo asked Holland
several more times to produce his license and to tell Rizzo
where he lived, saying that otherwise Rizzo would arrest him
"for failure to identify yourself to me." Eventually, Rizzo
told Holland that he was under arrest. At that point, Rizzo
and Coffin patted down Holland, removed his wallet, and found
a driver's license in the wallet that identified the driver
as Rory Holland. Rizzo then allegedly said, "I guess we got
a license in here, I guess we can't get you for that."
Coffin and Rizzo took Holland to the Cumberland County
Jail. According to Holland, some officers referred to him as
a bank robbery suspect. Holland refused to speak with the
booking officer or others at the jail. Holland was released
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on bail after the police apprehended another bank robbery
suspect. Ultimately, no charges of any kind were pressed
against Holland.
Thereafter, Holland brought the present suit against
Rizzo, Coffin and the city. As the basis for his section
1983 claim, Holland alleged that his arrest had violated the
Fourth Amendment's protection against unreasonable searches
and seizures made applicable to the states through the
Fourteenth Amendment. Specifically, the complaint alleged
that the police lacked probable cause to arrest him for any
reason, that the actual charge was a pretext to detain him
for questioning about the bank robbery, and that the arrest
was retaliation for his refusal to speak.
In the course of discovery Holland--who had previously
been in disputes with the Portland police--learned that some
weeks before the arrest, the police had circulated
information about him in so-called crime alert bulletins.
Knitting the bulletins together with the disputes, Holland
suggested that his arrest was part of a general campaign of
harassment directed against him by the police. Holland did
not amend his complaint.
On January 25, 1996, the district court granted the
defendants' motion for summary judgment. The district court
ruled that the police had probable cause to arrest Holland
for failing to identify himself or provide his license. It
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called the charge of harassment "hollow." And it ruled that
the city was not liable because, quite apart from the lack of
a municipal custom or policy, this arrest had been justified.
Holland now appeals.
1. On review of a grant of summary judgment, this court
considers the matter de novo, taking the facts most favorably
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to the non-moving party. St. Hilaire v. City of Laconia, 71
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F.3d 20, 24 (1st Cir. 1995), cert. denied, 116 S. Ct. 2548
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(1996). We begin by considering whether the police had
probable cause to arrest Holland--that is, whether the facts
known to the police indicated that Holland had committed a
criminal offense. The parties agree that Holland was charged
with violating 29 Me. Rev. Stat. Ann. 2501 (later
renumbered) which said:
Whoever, while operating a vehicle in violation
of this [motor vehicle regulations] Title, fails or
refuses, when requested by an officer authorized to
make arrests, to give the operator's correct name,
address and date of birth is guilty of a Class E
crime.
At first blush, the literal language might appear to
make the officers' authority depend upon whether the driver
was actually operating in violation of state law. But the
Maine Supreme Judicial Court has interpreted section 2501 to
permit an officer to stop a driver and ask his name on the
basis of an articulable suspicion that the driver has done
something wrong. State v. Littlefield, 677 A.2d 1055, 1057
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(Me. 1996). Indeed, even if it then becomes clear that the
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suspected violation had not occurred, the officer may still
insist on seeing the driver's license and registration.
State v. Hill, 606 A.2d 793, 794-95 (Me. 1992).
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Holland may not have violated any motor vehicle law by
driving with a missing rear window. But the missing rear
window, or any other similar non-cosmetic damage, could
reasonably create a suspicion of such a violation. See 29
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Me. Rev. Stat. Ann. 2503(1)(D) (requiring that motor
vehicle equipment "[n]ot pose a hazard . . . ."). Thus, when
the officers asked Holland to identify himself, section 2501
required Holland to provide his name, address, and date of
birth--or face arrest. See 17-A Me. Rev. Stat. Ann. 15(B)
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(authorizing arrest for Class E crimes committed in an
officer's presence).
Holland does not challenge the initial stop, see Terry
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v. Ohio, 392 U.S. 1 (1968), nor argue that the statute itself
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is unconstitutional. Cf. California v. Byers, 402 U.S. 424
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(1971). He instead argues that the police had no reason to
request his name since they already knew it, citing Rodriguez
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v. Comas, 888 F.2d 899 (1st Cir. 1989). But where the law
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requires the motorist to supply his name, the police can
reasonably insist upon confirmation. Further, the police
also sought Holland's present address, which the statute
required him to provide, and there is no indication that the
police had this information.
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Holland's reliance on Rodriquez is misplaced. There,
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Rodriguez was arrested on a charge of obstruction of justice
because he declined to provide his name and address to an
officer. Rodriquez was well known to the officer, and there
was no separate statute--such as Maine's motor vehicle law--
requiring that he provide his name and address. This court
held only that the refusal could not even arguably constitute
"obstruction of justice" where the refusal to provide this
already-known information neither could nor did obstruct the
officer's investigation. 888 F.2d at 902.
Quoting language from other cases, Holland also claims
that police officers may not arrest a suspect if they can
obtain the information that they seek through a reasonable
investigation. See Sevigny v. Dicksey, 846 F.2d 953 (4th
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Cir. 1988); BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986).
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But these cases impose no such limitation; rather, they
demand that officers undertake reasonable investigation to
determine whether probable cause exists to arrest a suspect.
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Sevigny, 846 F.2d at 957-58; BeVier, 806 F.2d at 127. Here,
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Holland committed the offense in the presence of the
officers.
2. Although Holland devotes much of his brief to
disputing the police claim of probable cause, he has a fall-
back contention less easily resolved. Fairly construing his
arguments, we take him to challenge the validity of his
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arrest even assuming probable cause (which he disputes
strongly but we find to be established). In sum, he says
that the police nominally arrested him for refusing to give
his name and address but that this was a "pretext" because
the arrest was motivated by other, more sinister objectives.
On Holland's version of events, which must be credited
at this stage, see St. Hilaire, 71 F.3d at 24, there is
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reason for thinking that the police did not care much about
the missing car window or Holland's failure to give his name
or address. Indeed, a jury, after a full trial, might well
find that the police arrested Holland for a technical
violation in order to pursue their investigation into the
bank robbery, suspecting Holland of complicity but perhaps
lacking enough evidence to arrest him on this charge.
The term "pretext" is sometimes used, as Holland uses it
here, with the assertion that the police may not make an
arrest otherwise based on probable cause when their true aim
is to forward some other investigation. But aside from
dicta, it is hard to find recent holdings to support this
proposition; one exception is the Eleventh Circuit. United
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States v. Valdez, 931 F.2d 1448, 1450-51 (11th Cir. 1991).
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Our own circuit, like several others, has rejected the
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inquiry into motive. United States v. McCambridge, 551 F.2d
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865, 869-70 (1st Cir. 1977).1
In all events, the Supreme Court recently settled the
matter in Whren v. United States, 116 S. Ct. 1769 (1996),
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holding that "[s]ubjective intentions play no role in
ordinary, probable-cause Fourth Amendment analysis." Id. at
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1774. There, the Court explicitly rejected the very test
used by the Eleventh Circuit in Valdez which asks whether the
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officer "would" have made the stop or arrest absent the
"other" motive. See id. at 1774-75; see also United States
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v. Robinson, 414 U.S. 218, 221 n.1 (1973) (lawful traffic
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violation arrest was not unconstitutional, despite claim that
it was "a mere pretext for a narcotics search").
The conflicting policy concerns are obvious. On the one
hand, motor vehicle operation often gives rise to fairly
minor violations, making it easy for the police to find an
excuse; on the other hand, the violation does provide a
bright line standard while an inquiry into actual motive,
directly or indirectly, invites all kinds of diversion. See
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Whren, 116 S. Ct. at 1774-75. Further, "pretextual" stops or
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arrests, where probable cause exists and the motive is to
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1To the annoyance of commentators, the dominant view in
the circuits has favored a strictly objective test as to
whether probable cause justifies a search or an arrest. See
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1 LaFave, Search and Seizure 1.4(e), at 120-21 & n.61 (3d
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ed. 1996).
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investigate another crime, may not seem all that sinister to
the Justices, who were unanimous in Whren.
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How far Whren would extend in the face of dubious
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motives or other constitutional concerns is a more difficult
question, and one not entirely avoidable here. Holland's
version of events suggests that the police aimed not only to
hold him for further investigation but also that the arrest
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itself was retaliation for his refusal to answer questions
about the robbery. According to Holland, after he refused to
answer any questions about the bank robbery, Rizzo said that
because Holland had been driving, "well, then we can get him
for not having a license or something or other." Holland
further asserted that Rizzo was "obviously upset and angry
with me that I would not speak with him at all about the
robbery."
Holland's brief barely refers to the Fifth Amendment;
and the law on the relationship between police questioning
and the privilege against self-incrimination is an
embarrassing tangle. Historically, the privilege and police
questioning were unconnected, see 8 Wigmore, Evidence 2252,
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at 328-29 (McNaughton rev. ed. 1961); and the more modern
blurring of lines has left unclear whether the privilege can
ever be violated by such questioning where no incriminating
statement is thereafter used in a proceeding. See Wiley v.
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Mayor and City Council of Baltimore, 48 F.3d 773, 777-78 (4th
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Cir.) (Powell, J.) cert. denied, 116 S. Ct. 89 (1995).2
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Even if the Fifth Amendment is put to one side, the
defendants do not suggest that Holland had any legal
obligation to answer questions about the robbery. Compare
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Brown v. Texas, 443 U.S. 47, 52-53 (1979). While the police
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did not purport to arrest Holland for refusing to cooperate,
the facts might permit a jury to think that this was their
underlying motivation. Yet assuming this premise, the
question remains whether such a motive for an arrest
otherwise justified by probable cause alters the message of
Whren.
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In our view, it does not. The police, prosecutors, and
courts constantly make judgments--including decisions not to
prosecute or to permit or impose a reduced sentence--based on
an assessment of an individual's cooperation. The decision
to arrest, where probable cause exists, is a discretionary
one informed by many considerations. And any attempt to
untangle the ascribed motive from a skein of others, in
prompting an arrest justified by objective probable cause,
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2Of course, Holland never asserted the privilege when
questioned, as is customarily required. The Supreme Court
has said that this requirement may not apply in police-
station questioning or like interrogation, Minnesota v.
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Murphy, 465 U.S. 420, 429-30 (1984), but shortly thereafter
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it ruled that one held briefly in a traffic stop was not "in
custody" for purposes of Miranda. Berkemer v. McCarty, 468
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U.S. 420, 440 (1984).
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would invite exactly the inquiry into police motivation
condemned by Whren.
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Actual motive sometimes does play a role in section 1983
actions. E.g., Waters v. Churchill, 511 U.S. 661 (1994)
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(discharge in retaliation for exercise of First Amendment
rights). But in evaluating arrests, the Supreme Court has
given primacy to the Fourth Amendment's own objective
standards, even where other constitutional bases might be
invoked. Thus, the Court recently rejected an attempt to use
substantive due process as a more favorable framework for
assessing a claim, at least insofar as it was deemed one for
unlawful detention. Albright v. Oliver, 510 U.S. 266, 274-75
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(1994).
This does not mean that probable cause forecloses every
possible challenge to an arrest. Whren itself strongly
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implies that an equal protection challenge to an arrest,
despite probable cause existing, might yet be entertained,
although the court does not say what facts would be needed to
support such a challenge. 116 S. Ct. at 1774. An objective
showing that (for example) only blacks or Asians were ever
arrested for a specific, widely committed offense would pose
a different case than Whren. See Yick Wo v. Hopkins, 118
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U.S. 356 (1886).
This brings us to Holland's final claim of ascribing an
illicit motive for the arrest. It is evident from Holland's
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deposition that he himself thinks (based on prior incidents)
that he was a target of general police harassment, resting in
part on the fact he is black. But the racial charge is
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unsubstantiated by anything we can find in the record and is
not directly urged in Holland's appellate brief. We note it
only to stress that our decision does not reach the difficult
issues that might be raised by a substantiated charge of
racial discrimination. Compare United States v. Armstrong,
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116 S. Ct. 1480, 1486-88 (1996).
Putting aside racial motives, we note that the district
court deemed the entire harassment charge unsupported and
declined to discuss it at length. On the other hand, if one
accepts Holland's deposition testimony, there were obviously
prior incidents and some ongoing tension between Holland and
the police. In addition, Holland's name had been circulated
within the police department, although that standing alone
would not be wrongful. See Paul v. Davis, 424 U.S. 693
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(1976); United States v. Egemonye, 62 F.3d 425, 428 (1st Cir.
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1995).
But even if assuming that a jury might think that
Holland had been harassed in the past, we do not see how a
reasonable jury could decide that this was the cause of his
arrest in this instance. Such a charge is contradicted by
Holland's own precise version of what the police said at the
arrest. That version indicates that the police officers'
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immediate reasons for the arrest were, at worst, a belief
that Holland was a suspect in the bank robbery, possibly
aggravated by his refusal to cooperate or disclose his
whereabouts at the time.
We must say in candor that Holland would have an uphill
road to climb even if he had plausibly claimed that some
general police animosity lay behind this arrest. Given
Whren, any plaintiff is going to have difficulty in using
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subjective motive to attack an arrest which is otherwise
objectively justified by probable cause. But the variations
in facts, and certain extreme possibilities, caution against
deciding too much in the abstract.
3. The claim of municipal liability in this case
depended on Holland's claim that the officers violated
Holland's constitutional rights by arresting him as a part of
their campaign of harassment. Holland sought to implicate
the city, under Monell v. New York City Department of Social
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Services, 436 U.S. 658, 694 (1978), by charging that the
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harassment grew out of an officially established program of
targeting suspects, including the circulation of information
about them.
Whatever "custom or policy" the city may have
maintained toward individuals that the police deemed
suspicious, Holland cannot show that it was "the cause of,
and moving force behind," his arrest in this case. Foley v.
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City of Lowell, 948 F.2d 10, 14 (1st Cir. 1991). Further, we
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have concluded that the arrest was itself lawful because
probable cause existed and Holland has offered no supported
basis for overcoming Whren. Thus, the claim against the city
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was properly dismissed.
Affirmed.
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